Will These New Laws Affect Your Company In 2018
New Parent Leave Act
Employers with 50 or more employees are already familiar with the obligation to provide baby bonding leave under the California Family Rights Act (“the CFRA”).
Senate Bill 63 amends Section 12945.6 of the Government Code to expand the “baby bonding” protections of the CFRA to smaller employers. Effective January 1, 2018, employees who have at least 1,250 hours of service with the employer during the previous 12‐month period and who work at a worksite in which the employer employs 20 to 49 employees within 75 miles will be permitted to take up to 12 weeks of unpaid parental leave to bond with a new child.
The parental leave must be taken within one year of the child’s birth, adoption, or foster care placement. The employee may use accrued vacation pay, paid sick time, other accrued paid time off during the leave.
The employer must guarantee reinstatement of employment for the employee in the same or comparable position at the end of the leave.
If the employer employs both parents and they are entitled to leave pursuant to this law for the same birth, adoption, or foster care placement, the parents’ mandated parental leave is capped at the 12 weeks that would be granted to one employee. The employer may, but is not required to, grant simultaneous leave to the parents.
The employer is required, during the employee’s leave, to maintain health coverage under a group health plan at the same level and under the same conditions that would have been provided to the employee if the employee were not on leave (not to exceed 12 weeks over the course of the 12‐month period following commencement of the parental leave). An employer can recover the costs of maintaining the health plan for employees who do not return to work after their leave is exhausted if the failure to return is due to a reason other than a serious health condition or other circumstances beyond the employee’s control.
To the extent that the state regulations that apply to the CFRA are not inconsistent with this law or any other law, they are incorporated by reference and govern this new law.
Restriction on Obtaining Salary History
AB 168 amends California Labor Code Section 432. Effective January 1, 2018, employers and their agents are not permitted to directly or indirectly seek or inquire into a job applicant’s salary history, compensation or benefits. Employers cannot use such information in determining whether to extend a job offer or in deciding what salary to offer the applicant. In addition, employers must disclose pay scales for a position upon request from an applicant.
AB 168 does not prohibit applicants from disclosing wage history information “voluntarily and without prompting.” If an applicant makes such a voluntary disclosure, then the employer may use it to determine whether to extend a job offer or to decide what compensation to offer the applicant. However, such use is still subject to the Equal Pay Act’s caveat that prior pay cannot, by itself, be used as a justification for any disparity in compensation between employees of different races, sexes, or ethnicities.
The law also does not prohibit obtaining or using pay history information disclosable to the public under federal or state law.
“Ban the Box” Expanded Statewide
Los Angeles City earlier banned employers within its jurisdiction from asking employment applicants about their criminal conviction history until a conditional offer of employment had been made. Now Governor Brown has signed into law a similar ban that applies statewide to employers of five or more employees. The new law (AB 1008, to be codified at new Government Code Section 12952) goes into effect on January 1, 2018.
Under the new statewide law, employers may not ask applicants for employment, either in writing or orally, about their conviction history until a conditional offer of employment is made. Employers may not consider or disseminate information about the following at any time: (a) an arrest which did not result in conviction except in extremely limited circumstances; (b) referral to or participation in a pretrial or post trial diversion program; or (c) convictions that were expunged or sealed.
After an offer of employment is made conditioned on a background check, the employer may inquire into conviction history and conduct a background check. If that background check reveals a criminal conviction, and if the employer intends to deny the applicant the position at least in part because of any conviction, the employer must engage in an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that would justify denying the applicant the position. This is similar to the Los Angeles City law, however, unlike the Los Angeles City law, the assessment is not required to be in writing, but it may be. The factors to be considered in determining whether the conviction should bar employment are very similar to those outlined in the Los Angeles City law, such as consideration of the nature and gravity of the conduct, the time that has passed since the criminal activity occurred, and the nature of the job sought.
The employer must then notify the applicant regarding the decision in writing which shall include the conviction(s) which form the basis for disqualification, a copy of the conviction history report and an explanation of the applicant’s right to respond to the preliminary decision. The applicant then has at least five business days to respond to the preliminary decision and this time period can be extended under certain circumstances. The employer must consider the information subsequently provided by the applicant before making a final decision.
If the final decision is to deny employment, the employer must notify the applicant in writing and explaining any existing procedure the employee has to challenge the decision or to request reconsideration. The notification must disclose that the employee has the right to file a complaint with the Department of Fair Employment and Housing.
Note that this law does not apply to public agency positions that require a check of an applicant’s conviction history, a position with a criminal justice agency, a position as a farm labor contractor, or any position where the law requires criminal background checks.
Santa Monica Sick Leave
Although Santa Monica enacted its sick leave ordinance in 2017, employers should be aware that effective January 1, 2018, employees who work in Santa Monica will be entitled to more paid sick leave than in 2017. Santa Monica employees who work for employers with 25 or fewer employees will be entitled to 40 hours of sick leave per year, while employers with 26 or more employees must provide 72 hours of paid sick leave per year. Santa Monica employers can also review our prior discussion of the other elements of the ordinance here.
Reminder – The State Minimum Wage is Increasing
The California minimum wage increases on January 1, 2018, from $10.50 an hour to $11.00 an hour for employers of 26 or more employees, and from $10.00 an hour to $10.50 an hour for employees of 25 or fewer employees.